State v. BJS
| Decision Date | 04 January 1994 |
| Docket Number | No. 12546-7-III,12546-7-III |
| Citation | 72 Wn.App. 368,864 P.2d 432 |
| Parties | STATE of Washington, Respondent, v. BJS, Appellant. |
| Court | Washington Court of Appeals |
C. Bradley Chinn, Spokane, for appellant.
William H. Reeves, Deputy Pros. Atty., Spokane, for respondent.
BJS appeals her juvenile court conviction for first degree child molestation, RCW 9A.44.083. She contends (1) the trial court's findings of fact are insufficient to support the judgment, and (2) the court erred in admitting out-of-court statements of two children.
BJS baby-sat for DD, from July 10 to July 22, 1991, and from August 15 to August 19, 1991. BJS took care of DD's daughters Victim 1, Victim 2, and RD. Victim 1 and Victim 2, twins, were 3 years old at the time. RD was 7 years old.
In early September 1991, DD was bathing her daughters when Victim 2 told her that BJS had Victim 1 lick her daisy. The family used "daisy" as a euphemism for the vulvar and vaginal area. DD then spoke with RD who confirmed Victim 2's statement. RD stated on one occasion BJS had Victim 2 lick Victim 1's daisy, and on another she had Victim 1 lick Victim 2's. DD reported the incident to the police who later interviewed all three children. BJS was charged by information with two counts of first degree child molestation.
At trial, the court found Victim 1 and Victim 2 incompetent to testify. RD, age 8 at the time of the trial, was found competent and testified. The court allowed testimony of four witnesses as to out-of-court statements made by Victim 1 and Victim 2: DD; Teresa Summerour, a child abuse interviewer; Barbara Cochran, the children's babysitter; and Officer J. Neal of the Airway Heights Police Department.
BJS contends the written findings of fact do not satisfy the requirements of JuCR 7.11(d) and do not support the guilty verdict.
JuCR 7.11(d) provides:
Written Findings and Conclusions on Appeal. The court shall enter written findings and conclusions in a case that is appealed. The findings shall state the ultimate facts as to each element of the crime and the evidence upon which the court relied in reaching its decision. The findings and conclusions may be entered after the notice of appeal is filed. The prosecution must submit such findings and conclusions within 21 days after receiving the juvenile's notice of appeal.
BJS filed a notice of appeal on June 26, 1992. On May 7, 1992, the trial court signed a document entitled "Findings of Fact and Conclusions of Law". 1 Although the document was filed within the time limit provided, it states no ultimate facts as to any element of the crime. Rather, it is a fill-in-the-blank form and merely recites the names of the testifying witnesses.
On September 14, 1992, the trial court signed a second document entitled "Findings of Fact and Conclusions of Law". 2 On October 20, 1992, counsel for BJS filed the document with this court. 3 Such a delay in filing the findings of fact would result in dismissal if the delay was prejudicial. State v. Royal, 122 Wash.2d 413, 858 P.2d 259 (1993). However, BJS does not contend she was prejudiced by the delay in filing the findings of fact. Her contention is the findings of fact do not address the elements of the crime. We agree.
The elements of the crime of child molestation in the first degree are set out in RCW 9A.44.083(1):
A person is guilty of child molestation in the first degree when the person has sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.
The term "sexual contact" is defined in RCW 9A.44.010(2) as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party."
Therefore, the elements of first degree child molestation are:
(4) a perpetrator at least 36 months older than the victim, and
(5) the perpetrator and victim are not married.
Although the trial court did not find BJS personally touched the victims, she could still be found guilty of the crime. RCW 9A.08.020 provides for liability for the conduct of another; it states in part:
(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.
(2) A person is legally accountable for the conduct of another when:
(a) Acting with the kind of culpability that is sufficient for the commission of the crime, he causes an innocent or irresponsible person to engage in such conduct;
The second findings of fact 4 entered by the trial court sets out many operative facts, but reveals only the following ultimate facts as to the elements of the crime:
1. BJS was 13 years old at the time of the offense.
2. The victims were 3 years old.
3. The victims engaged in oral sex at the direction of BJS.
These facts establish that the victims were less than 12 years of age, that the perpetrator was more than 36 months older than the victims, and that there was a touching of the sexual parts of a person for which BJS could be legally accountable.
The facts set forth in the findings fail to address whether the acts were done for the purpose of gratifying sexual desire. Based on the nature of the contact in this case, it may be reasonable to assume, even highly probable, that the acts were done for sexual gratification. However, while "this court can read the testimony, it cannot weigh the evidence nor enter findings of fact." State v. Fellers, 37 Wash.App. 613, 616, 683 P.2d 209 (1984) (citing Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959)). Here, a finding that the touching was done for the purpose of sexual gratification is a crucial element. As Judge Forrest stated in his dissent in State v. Souza, 60 Wash.App. 534, 546, 805 P.2d 237, review denied, 116 Wash.2d 1026, 812 P.2d 103 (1991), "how is the appellate court to know when a failure to find is an oversight, and when it accurately represents the judge's view of the evidence at the time of decision?" Adequate written findings are essential to permit meaningful appellate review. State v. Pena, 65 Wash.App. 711, 715, 829 P.2d 256 (1992). Here, the facts found by the trial court do not constitute criminal conduct.
Because we hold the judgment was not supported by the findings of fact, we need not address BJS's other contention.
The conviction is reversed and the...
To continue reading
Request your trial
-
State v. Lorenz
...an essential element of first degree child molestation. State v. Markle, 118 Wash.2d 424, 435, 823 P.2d 1101 (1992); State v. BJS, 72 Wash.App. 368, 372, 864 P.2d 432 (1994); State v. Brown, 78 Wash.App. 891, 895, 899 P.2d 34 (1995); State v. Jones, 71 Wash.App. 798, 825, 863 P.2d 85 (1993)......
-
State v. Bobenhouse
...in conduct that would constitute a crime if Mr. Bobenhouse engaged in the same conduct. RCW 9A.08.020(2)(a). See State v. BJS, 72 Wash.App. 368, 371-72, 864 P.2d 432 (1994) (although the defendant did not personally touch the victims, she was legally accountable for child molestation commit......
-
State v. Lobos
...the juvenile court found that "[t]he contact described by A.K.T. (DOB 9/27/02) was sexual contact." CP at 14. Mr. Lobos relies heavily on State v. BJS to that the absence of a finding of sexual gratification results in reversal and dismissal. State v. BJS, 72 Wn.App. 368, 372-73, 864 P.2d 4......
-
State v. Lobos
...the juvenile court found that "[t]he contact described by A.K.T. (DOB 9/27/02) was sexual contact." CP at 14. Mr. Lobos relies heavily on State v. BJS to demonstrate that the absence of a finding of sexual gratification results in reversal and dismissal. State v. BJS, 72 Wn. App. 368, 372-7......